Smith v. N.Y. Life Ins. Co

• Decision Date: 01 November 1933
• Docket Number: No. 259.,259.
• Court: North Carolina Supreme Court
• Parties: SMITH. v. NEW YORK LIFE INS. CO.

171 S.E. 330

205 N. C. 348

SMITH.

v.NEW YORK LIFE INS. CO.

No. 259.

Supreme Court of North Carolina.

Nov. 1, 1933.

Appeal from Superior Court, Pitt County; Grady, Judge.

Action by Edward Dalton Smith against the New York Life Insurance Company. From an order removing cause to the federal court, plaintiff appeals.

Reversed.

The plaintiff instituted this action against the defendant, alleging that on October 9,. 1926, the defendant issued a life insurance policy in the sum of $5,000 upon the life of plaintiff. The beneficiary named in the policy was the mother of plaintiff, and the annual premium was $168. It was further alleged "That under said policy and contract of Insurance there was a provision known therein as total and permanent disability, which provides that upon the insured becoming disabled by injury or disease that wholly prevents him from performing any work or engaging in any business for remuneration or profit, occurring after the said insurance policy took effect and before the anniversary of the policy, * * * and upon receipt at the Home Office before any default of payment in premium of the proof of insured total disability and that he would be continuously so totally disabled for life or that he has stated that he is and for a period of three consecutive months has been totally disabled as above defined he shall be entitled to the benefits of a waiver of premium and $10.00 per month for each $1,000.00 set forth on the face of and in said policy for each completed month from the commencement of and during the entire period of the continuous total disability of the plaintiff." The plaintiff further alleged that he had suffered a total and permanent disability and furnished proof thereof, and that in accordance with the terms of the policy "he was entitled to have the said provision of said policy put in full force and effect for the month of September, 1932, entitling plaintiff to $50.00 per month from the said September 1, 1932, continuously each month thereafter, and at the time of instituting this action the plaintiff is entitled to $300.00 and such interest as accrued thereunder and entitled to have a waiver of the premium due in October 1932, and continuously thereon during and for the remainder of plaintiff's permanent disability or life, and upon his death a complete payment of said policy to said beneficiary named therein or as provided by law."

Upon such allegations the plaintiff prayed that he recover the amount of installments due at the time of instituting the action, and that the defendant be required to pay the sum of $50 per month during and continuing his permanent disability. The defendant in apt time duly filed a petition for...